The Rule of Law vs the Law of Revenge? - Commentary on the Execution of Saddam Hussein

Camp Justice, the American military post in the Kadhimiya district of northern Baghdad encloses the Istikhbarat prison. The prison itself is a forbidding four-storey concrete building that once housed one of Iraq's military intelligence services and now serves as a base for an Iraqi Army brigade. The execution block consists of an ill-lit concrete structure behind the main prison building where thousands of hangings took place in past decades.

Saddam Hussein, president of Iraq from 1979 till 2003, was flown into this setting from the US-run Camp Cropper on 30 December 2006 and hung before dawn for crimes against humanity. But the countdown to this hanging had actually begun some eight weeks earlier, on 5 th November, when the Chief Judge in the Dujail case passed death sentences on Saddam and his two associates, Barzan Ibrahim al-Takriti and Awad al-Bandar. The death sentence was later also passed on Taha Yassin Ramadan on 26 December 2006 when the Appeals Court of the Iraq High Tribunal overturned an earlier life sentence.

To execute him rapidly, consistent with PM Nuri Kamal al-Maliki's pledge, readers will have surely read about the nifty somersaults that the Iraqi government undertook in order to address a constitutional requirement that the three-man presidency council approve all executions, as well as a stipulation in the Iraqi law forbidding executions during religious holidays (including 'Eid el-Adha , which began for Iraqi Sunnis on Saturday but was postponed for Iraqi Shi'is until Sunday).

The detailed narrative assembled from various American and Iraqi sources shows that the Americans counselled caution in the way Iraqis would carry out the hanging. Indeed, a picture has emerged of a gulf between Americans and the Iraqi exiles who rode to power behind American tanks. What also emerged during this chapter are clear differences on the interpretation of the law, legal procedure and standards of international decorum. For instance, when US Ambassador Zalmay Khalilzad suggested that the Iraqis get a written ruling from the Iraqi Supreme Judicial Council approving the execution, Midhat al-Mahmoud, Chief Judge, refused to do so. The Iraqi government then pulled out a trump card: it called the marjaiya or high-ranking Shi'i clerics in the holy city of Najaf (the supreme authority for Iraqi Shi'ism, as distinct from Qom for Iranian Shi'ism) and asked for their approval. Once the Prime Minister received the letter, he authorised the hanging.

Equally interesting was the apparently intentional absence of any reporters or UN observers at the hanging, since the Iraqi authorities assembled an execution party of 14 Shi'i officials (and a Sunni cleric invited to help the condemned with his prayers). Once executed, there was reportedly another wrangle over the corpse, and it took a trip to Baghdad by members of Saddam Hussein's Al-Bu Nasir tribe (in an American chopper) to ensure that he was handed over to his tribe who later interred him at his birthplace of Al-Auja, a small village outside the town of Tikrit north of Baghdad.

Why am I deeply perturbed by this deplorable set of events that led to an execution not too far removed from a lynching? Although I oppose the death penalty in my capacities both as an International lawyer and a Christian believer and would argue that it is neither the best nor most effective way of punishing criminals, I acknowledge nonetheless that this is the law of the land in Iraq (the death penalty was re-instated in 2004, after being temporarily suspended by Paul Bremer in 2003) and so relent to Iraqi jurisprudence on this matter.

However, what I truly find disturbing with the whole chapter that peaked toward a crescendo on 30 th December is that the present government seemed much more interested in hanging Saddam Hussein than in considering the legal and political consequences of its decision. For instance, according to many international organisations such as Human Rights Watch, there were serious flaws during the trial, with misgivings that some judges submitted to government pressure. Moreover, many officials also voiced their frustration over the dismissal of two judges seen as too indulgent with Saddam Hussein or the lack of effort to investigate seriously the killing of three defence lawyers. The eagerness of the appeals court to fast-forward Saddam Hussein to the gallows - and the indecent triumphalism that followed with the witnesses and guards at the execution scene taunting Saddam and hailing the firebrand cleric Moktada al-Sadr - would indicate a propensity by the Iraqi government to placate, or perhaps even curry favour with, its Shi'i supporters.

True, Saddam Hussein deserved no pity for all his vile crimes and atrocities over long years, but his execution should have been handled differently, less shabbily in its procedure and less sloppily in its mix of law and politics, in order to set an example to all those other dictators region-wide or world-wide even who also abuse the rule of law for their own interests.

In my opinion, this execution came too late for many Iraqi Kurds and Arabs who had suffered immeasurably Saddam's wrath, vengeance and violence for almost 25 years. But by being sentenced for the Dujail massacres of 1982 alone, he was neither held accountable nor received punishment for his other more heinous crimes. What about the Anfal campaign against the Kurds in the late 1980's (where 200,000 Kurds were killed in Halabja and elsewhere, including the wholesale destruction of Qala Diza and Qasr-i-Shirin and the creation of mujama'at / concentration camps for women and children)? What about the assault on the Marsh Arabs in the 1990's and the draining of the marshes, or the slaughtering of the Kurds and Shi'is who rose against him in 1991 after the first Gulf war? Or, as Dalal al-Bizri wrote in a powerful editorial in al-Hayat , what about the scores of ordinary men and women who were also gaoled, raped, tortured or killed during his reign but did not receive any justice or even any attention? Besides, with the tyrant dead, would we ever know about the collusions that reportedly, or allegedly, played out between Iraq and other countries (such as Turkey) during some of those bloody campaigns?

The execution was perhaps inevitable when viewed through an Iraqi lens, but it still ought to have been an exercise in state-administered justice that will have been carried out dispassionately and with the application of the rule of law. For a country that is ostensibly battling against those dark forces of injustice and autocracy, this whole ugly chapter - and certainly the hanging episode - has become another embarrassment for Iraqis and for their American allies. After all, is it that Iraq has passed from one dark era to another equally grim one of spiralling sectarian vengefulness? Dalal el-Bizri again cut to the chase in her op-ed this week when she wrote in one pithy sentence that the trial of Saddam was unfair and his execution was unjust. Indeed, with the Iraqi government talking about national reconciliation and dialogue amongst all Iraqis, and with the US talking up the values of democracy in the country, I believe both those hopes were dashed on the day.

Indeed, with this hanging, not only has a new and more promising dawn for Iraq suffered another man-made and sectarian setback, it is also clear that the homicidal tensions between the Sunni and Shi'i communities have been exacerbated further. Yet, could this execution not have served a constructive purpose for Iraq? Much as the court sentenced him to the death penalty, Saddam Hussein should have been allowed to stand trial for the other - far more inhumane, if I dare write in dangerously relative terms - ignominies of his reign. Then, it might have been possible for Iraqi society to discover the truth of his deeds and therefore also contribute toward preventing further repetitions of history. After all, I do not only view the execution of Saddam as a matter exclusively between a court and a guilty defendant. Rather, I view it as an opportunity for the Iraqi society to exorcise the ghosts of the past and begin a healing process that might lead toward a better Iraq - released from its inner demons and ready to become healthy again. However, historical justice was sidestepped with this execution and, as Nahla Shahhal commented in her editorial, the sword proved more pressing yet again. The American jurist Lawrence Douglas, Professor of Law, Jurisprudence and Social Thought at Amherst College also commented in The Saddam Hussein Hanging: A Spectacle of Vengeance that the law of revenge prevailed over the rule of law.

With its rush, the Maliki government not only failed to protect the rights and personal safety of all its citizens, it also fed the brutal civil war in the country. This hanging is a sad metaphor for how the 'new Iraq' is alarmingly beginning to resemble a paler shade of the repressive, vengeful and blood-soaked place it was under Saddam Hussein until 2003. At a time when the Washington Post and IRIN both cited Iraqi Health Ministry statistics that just under 23,000 Iraqi civilians and police officers died violently in 2006 (with more than 17,000 of them in the last six months), and when a UNHCR advisory stated that there are today 1.7 million internally displaced Iraqis and up to 2.1 million refugees abroad, the unsightly goings-on culminating in that ill-lit execution block reflect the unsettling human vindictiveness and rampant political lawlessness of Iraq.

In his Passion and Law in Iraq: Reflections on Saddam Hussein's Execution, Dr Chibli Mallat, a Lebanese human rights lawyer and visiting professor at Princeton University, writes, "I know from experience that the rule of law is often sacrificed in the tide of passion". Although there is much validity in this statement on different popular levels in Iraq (as much as elsewhere in the Middle East), it still does not justify the manner of the execution. The Iraqi government is not 'the masses' and it should have assumed its leadership role to ensure that the execution echoed the rule of law.

In fact, this is also what many Arab thinkers and writers across the whole Middle East have accentuated in their reflections or analyses. For instance, Dr Yassin El-Haj Saleh, regular writer in Al-Hayat , concluded poignantly that Iraq had missed both a moral and political moment with this execution at a time when it could have chosen to move forward.

Faced with such realities, however, I hope this will not be the last word on the subject, and that positive lessons could be learnt from this unfortunate concatenation of circumstances. After all, is it not in the interest of ordinary Iraqis and their society of 26 million children, men and women to overstep what is personal, subjective and non-uniform and temper it with what is impersonal, objective and relatively uniform? Is this not what the rule of law should uphold too?